[1] This is an application in
which the pursuers appeal the decision of the defenders to suspend the premises
licence for a period of fourteen days in respect of licensed premises known as
the Pearl Lounge, 16 Dee Street, Aberdeen.

[2] As will be seen, the appeal
arises from a lamentable series of events caused by the defenders, but not just
during the hearing which resulted in the suspension but also during the appeal
process. The merits of the appeal are, unsurprisingly although belatedly, not
in dispute. The issue before me was what disposal I should make after allowing
the appeal.

[3] Before I deal with that
issue and parties' submissions thereon, it is necessary to set out the factual
background.

[4] By letter dated 3 September 2012, Grampian Police submitted an application for review of the pursuers'
premises licence. In it the police alleged that the pursuers had breached
certain mandatory conditions of their licence by not operating effectively a
system for the verification of the age of patrons and not ensuring that there
were suitable licensed door supervisors to maintain order, security and to
prevent patrons breaching the licensing objectives. It was also alleged that
the pursuers had breached four of those objectives.

[5] There were two incidents.
The first was of a 16 year old girl being drunk and disorderly within the
premises and which resulted in her being ejected. She subsequently was involved
in an assault on two females, albeit not in or immediately outside the premises.
The second was of two male patrons being drunk in the premises and an assault
by them on another male who was also drunk.

[6] The defenders decided that
two of the four licensing objectives had been breached, namely preventing
public nuisance and preventing crime and disorder, as well as other conditions.
As I have said, they also decided that the pursuers' licence should be
suspended for a period of two weeks.

[7] In the record the pursuers
set out their grounds of appeal. All of them are conceded by the defenders.
They are in summary as follows:

1. During the hearing a member
of the defenders was seen to be asleep for, according to the pursuers, a
substantial period of time. (The defenders admit that she "dozed off" but they neither
admit nor deny the length of period she did so.) Notwithstanding that, she
retired with the other members to consider their decision and took part in
their deliberations. On the defenders' decision being announced, the member
stated that she agreed with it.

2. During the hearing, the
pursuers' agent was making a submission. The representative of Grampian Police
interrupted to object to the reference by the agent to a production. Without
hearing the agent in response to the objection, the defenders sustained it.

3. The defenders failed to vote
on their decision in public, but did so in private after their deliberations.

4. On announcing the decision
the convener of the defenders misrepresented to the pursuers' agent the grounds
for review which the defenders had decided were established.

(In his note of argument,
counsel for the pursuers identified five grounds. Looking at the record, I
think that the defenders have in fact conceded only four. Given the relative
importance of each ground, I do not think that anything turns on that.)

[8] It scarcely needs to be
said that these are serious breaches of natural justice. I dare say in a whole career
as a judicial office holder there will be occasions, hopefully few, when the
temptation to "doze off" can appear to be an attractive option - and I do not
wish to criticise too harshly the member who did so in this case. She is, I am
told, an experienced member and indeed a former convener. Nevertheless, it is
surprising that having presumably realised that she had missed some of the
exchanges during the hearing she still thought it appropriate to participate in
the deliberations and vote in favour of the decision reached by her colleagues.
It is equally surprising that apparently no other member of the defenders either
noticed that she had fallen asleep or, if they did notice, did not consider the
inappropriateness of her being involved further in the proceedings. I do not know
what the quorum is for such hearings but if the member's disqualification from
further participation in the hearing would have meant that the hearing would
have to be adjourned, then that was the decision the defenders ought to have
made. The second breach is equally serious, given that the agent concerned, Mrs
Janet Hood, is an eminent licensing practitioner and it is most unlikely that
any submission which she wished to make would not have assisted the defenders
in their deliberations.

[9] In fairness to the members,
it should not be forgotten that they are not legally qualified, no matter how
experienced in matters of licensing law and practice. They were entitled to
receive sound advice from their clerk. In this case, it appears that the advice
from that source was not as it should have been. Having said that and in the
light of subsequent events, I do however question whether even proper advice
would have been taken. It is to these events I now turn.

[10] On 15 October 2012, the pursuers lodged their application with the sheriff clerk. As is commonplace in
such appeals, the pursuers moved to have the decision of the defenders
suspended ad interim pending the conclusion of the appeal. The reason
for such a motion is obvious: if it were not granted, the suspension of the
licence would be served and the appeal would become academic. Such motions are
considered on the well known test of whether there is a triable issue and the
balance of convenience. The terms of the summary application have changed
little from their original form to their final state in the record, at least in
respect of the first three grounds of the appeal, the fourth not emerging until
after the defenders' statement of reasons was produced. The defenders were
therefore in no doubt about the basis of the appeal when the motion for interim
suspension was heard. As counsel for the pursuers submitted, it was difficult
to see on what basis the motion could be successfully opposed by the defenders.
Nevertheless, it was so opposed. I was advised by Mr Smith, the agent for the
defenders, that he had appeared at the hearing of the motion. He conceded that
he had given clear advice to the defenders that the motion should not be
opposed. It had been said by counsel that he understood that the members of the
defenders had "wanted the matter opposed no matter what". When pressed by me,
Mr Smith confirmed this was so, despite the advice he had tendered. Of course,
even the most hopeless opposition can be presented, often merely in a formal
manner - and is stated to be so. But the significance of the defenders' stance
becomes clearer as subsequent events unfolded.

[11] On 14 November 2012, the sheriff, acting under powers delegated by me, allowed the defenders fourteen
days to lodge answers to the application. Mr Smith also moved that the case be
remitted back to the defenders, presumably on a concession that the appeal be
allowed. That motion was rightly refused by the sheriff. The defenders lodged
their answers on 27 November 2012 - nearly six weeks after they had received
the service copy of the application. In answering the averments about the
member falling asleep, the defenders had this to say:

"Explained and averred that that individual or individuals (sic) who
say that Muriel Jaffray was seen to be asleep are mistaken in what they saw."

Putting to one side the technical
and grammatical ineptitude of this averment, in the light of the subsequent
position of the defenders it is an extraordinary statement. When pressed by me,
Mr Smith disclosed that a statement had been taken from Ms Jaffray. She had
said that she might have dozed off but was unsure. The clerk to the defenders
said the same. At the very least, the averment ought to have been that the
pursuers' averment was not known and not admitted. In fact, given the
defenders' final position, it might be more accurate to say that they ought to
have admitted the averment. They certainly had had ample time to discover the
truth.

[12] Added to that, the
defenders in their answers sidestepped the issue raised by the pursuers about
the police objection although in fairness there is no general denial that it had
occurred.

[13] The enthusiasm of the
defenders for a vigorous defence of their position was confirmed in a press
article on 20 October 2012. In it, a representative of the pursuers, described
as "the boss", had confirmed that the appeal had been lodged. (During the
course of the hearing before me, Mr Smith expressed reservations about the
appropriateness of the pursuers talking to the press about the case, although,
as I pointed out, it was scarcely for the defenders to complain given that
their convener had appeared on local radio on 11 October to talk about it.) In
the article, there was a quote from a spokesman for the defenders who stated
that "[w]e will continue with our preparations for a robust defence of the
licensing board's decision when the appeal goes to court."

[14] The issue before me was
whether, on the pursuers' motion, I reverse the decision of the defenders or
whether, on the defenders' motion, I remit the case to the defenders to
consider of new. I have decided that the decision should be reversed.

[15] In G A Estate Agency
Ltd v City of Glasgow District Council 1991 SLT 16 where the Inner House
described the breach by the local licensing committee as "a blatant, deliberate
contravention of the principles of natural justice" the committee was directed
to grant the application. In Mahmood v West Dunbartonshire Licensing Board
1998 SC 843, a similar approach was taken by the sheriff and supported by the
Inner House where the breach of natural justice had been of possible bias by
the chairman who had a private conversation with an objector before the
hearing. (Counsel advised that senior counsel in that case had withdrawn his
opposition to the reversal of the decision after it was suggested by Lord
McCluskey that this might be the correct course for senior counsel to take.)

[16] In G A Estate Agency,
the breach of natural justice was that the committee gave three grounds for
refusal, the third of which had not been the subject of discussion at the
hearing. A similar circumstance arose in William Hill (Scotland) Ltd v
Carrick District Licensing Board 1991 SLT 559 but on that occasion the same
Division of the Inner House, albeit a differently constituted one, decided that
the case be remitted to the board to hear de novo. The court was not
referred to G A Estate Agency. In Matchurban Ltd v Kyle and Carrick
District Council 1995 SC 13, following a breach of natural justice, the
Inner House was referred to both of these decisions. In deciding to remit to
the licensing authority, the court said,

"This is not an easy matter because there is some risk that attitudes
may have hardened having regard to the history of these applications. The
applications themselves were made in 1992 and only after the successful appeal
on the preliminary planning issue. On the other hand, however, Parliament has
decided that the decision on matters of this kind should be taken by the local
licensing authority and there would need to be compelling reasons for removing
from such authority the responsibility for taking such decisions. In the
present instance,... we are simply unable to tell to what extent, if at all,
other members of the committee which cast their votes against the applications
were influenced by anything said or done by the provost."

[17] That the hardening of
attitudes is a relevant consideration to be weighed in the balance had
previously been confirmed in Botterills of Blantyre v Hamilton District
Licensing Board 1986 SLT 14.

[18] In my opinion, these
authorities show that each case must be decided on its own facts and
circumstances and that there is a danger in placing too much reliance on the
facts in one case in contrast to those in another. Nevertheless, it must be
recognised that Parliament has decided that the defenders are the appropriate
body to decide matters surrounding the licensing of premises in which alcohol
is sold and in only compelling circumstances should the court take that
responsibility to itself. In any event, a court cannot have the necessary
knowledge of local conditions to make an informed decision in the same way that
a licensing board can. But it seems to me that where the actings which
constitute a breach of natural justice or possible or actual bias are so
serious or where there is a sufficiently serious risk, whether actual or
perceived, of the board not considering the case of new in a dispassionate and
judicial manner these rules of public policy must take precedence over the
desire of Parliament.

[19] In moving that I reverse
the decision, counsel relied on the individual breaches which he said were
individually and collectively of a most serious kind. He also relied upon the
decision, which he characterised as unwise, of the convener of the defenders to
give an interview on local radio when she knew the case was to be appealed, the
quotation of the defenders' spokesman in the press article, the comment by the
defenders that the motion for interim suspension must be opposed no matter what,
particularly when there was no proper reason for such opposition, the
misleading nature of the answers to the application nearly six weeks after the
appeal was lodged and the fact that there are only ten available members of the
defenders, nine had sat in this case (although one had left before the hearing
finished) and that it was therefore impossible to constitute a new board with
none of the eight involved.

[20] Mr Smith for the defenders
submitted that no matter their failings it was clear that there were facts upon
which the defenders were entitled to rely in making their decision, that the
failings were truly errors of procedure which would best be rectified by a
re-hearing and that in opposing the motion for interim suspension the defenders
were showing that they treated the matter seriously.

[21] In fairness to the
defenders, I cannot say that their failures at the hearing were anything other
than incompetence and at least in respect of some of those failures they appear
to have taken the advice of their clerk. But that, of course, cannot defeat the
rules of natural justice where the motives of the tribunal are nothing to the
point, at least in an exculpatory way. Each of the failures constitute in my
opinion serious breaches - indeed failure alone to vote in public has
previously resulted in the reversal of a decision and no remit being allowed (Simpson
v Banff and Buchan District Licensing Board 1990 SC 347). In my opinion, they
are both individually and collectively sufficiently serious for me to conclude
that a remit is inappropriate

[22] The alleged breaches which
the defenders had to consider were undoubtedly important, particularly the one
involving under age drinking. Moreover, the pursuers had previously received -
in 2010 - a written warning by the defenders for breaches of licensing
objectives. Nevertheless, it is significant that, as counsel pointed out, the
police did not see fit to report the incidents to the defenders until four
months had passed since the second incident, during which period presumably the
pursuers had continued to trade. Thus the importance of the alleged breaches is
not so material that it would persuade me not to reverse the defenders'
decision.

[23] As regards the other
factors relied upon by counsel, I do not take into account the interview on
local radio. That was given before the appeal was lodged and in any event the
convener said that if the pursuers appealed the defenders would be bound by the
decision of the court. Nor do I regard the spokesman's comment in the press
article to be of great concern, although in my view it was unwise for the
defenders to make any comment when they were aware, as by then they were, that
an appeal had been lodged. And I am prepared to accept, in the absence of clear
evidence to the contrary, that some of the averments in the answers probably
arose more through incompetence than anything more sinister.

[24] But I do regard the
averment denying that Ms Jaffray fell asleep in a different light. It is the
responsibility of a party in any court proceedings not to mislead the court. It
is also a party's responsibility to ensure that there is a proper basis in
evidence for all averments of fact stated in its pleadings. By denying that Ms
Jaffray had fallen asleep the defenders misled the court. That is a most
serious charge - in many respects more serious than the breaches of natural
justice during the hearing. It is particularly disappointing to record that
about a public body which exercises a quasi-judicial function. Despite being
pressed by me on several occasions, Mr Smith was unable satisfactorily to
explain why this averment had been made, but given the comment by the defenders
that the motion for interim suspension was to be opposed no matter what and was
so opposed in the teeth of very sound advice from Mr Smith that it should not
be, together with the spokesman's comment about a robust defence, I am also entitled
to conclude that the averment was intentionally inserted despite there being no
evidence at all to support it. For that reason alone, it is in my opinion clear
that there is a very real risk indeed that the defenders will be quite unable
to behave in a fair and impartial manner in the event that the case is remitted
to them de novo.

[25] Thus for all of the above
reasons the appeal is allowed and the decision of the defenders is reversed.
Expenses follow success and it was properly conceded by Mr Smith that the
appeal was suitable for the employment of counsel.

[26] I should add as a
postscript that I had considerable sympathy for the position which Mr Smith had
been put in by the defenders. He was subjected to a lengthy period of close
questioning by me, which very obviously caused him discomfort. That was because
he was clearly torn between his duty to his client and his (higher) duty to the
court. At first, he tried manfully to defend the indefensible, but quite
properly eventually acted in the manner I would expect of an officer of the
court. I have not had the previous pleasure of having him in my court but after
making enquiries I have every reason to think that he is a competent solicitor
who understands where his professional and ethical responsibilities lie. He is
of course employed by Aberdeen City Council. They owe him a duty of care as one
of their employees. In my opinion, they should look closely at the
circumstances of this case to see what lessons can be learned, a recommendation
that applies even more so to the members of Aberdeen Licensing Board.